By Linchang Shen
TABLE OF CONTENTS
Ⅱ Decline vs. Reintroduction
Ⅲ Is Jury System Totally an Imported Institution for China?
Ⅳ Should China Adopt Some Kind of Jury System?
Ⅴ Is Anglo-American Jury System Suitable for China?
Ⅵ How to Reform the Current People’s Assessor System?
It is quite interesting that since the turn of 20th and 21st century the jury system has attracted enormous attention throughout the world. Unexceptionally, this institution has also aroused heated debates in China. The purpose of this dissertation is to study whether China should adopt some kind of jury system and which style of jury system is more suitable for China if one is adopted, and further to explore how to reform the current jury system in China. The dissertation first looks through the reintroduction of jury system in Russia, Spain and Japan, analyzes the underlying motives of the important judiciary reforms and extracts the implication for China. Afterwards, the article researches whether China should adopt a jury system and then explores the suitable style jury system for China. Finally, the article examines the current jury system in China, points out the defects, and then correspondingly puts forwards some suggestions for reform of the current jury system.
I wish to thank Professor Palmer for his help and support. During the writing of this dissertation, Professor gave me much invaluable advice, and I really appreciate his kindness and patience.
In the United Kingdom, the jury system has declined gradually. In civil cases, the jury system has been virtually abolished; in criminal cases, the defendants’ right to trial by jury has been restricted increasingly, and the current Labor Government are doing their best to further contract the scope of the trial by jury for the reasons of efficiency, cost and others. In the United States, where the overwhelming majority of trials by jury in the world take place, the jury system has been also criticized fiercely. However, on the other hand, Russia in 1993, and Spain in 1995, reintroduced the Anglo-American style jury system; Japan, quite recently in 2004, imported the Continental style jury system (mixed bench). In China, coincidently, the jury system has aroused heated debates among legal scholars and judiciary officials since 1990s. The purpose of this dissertation is to explore whether China should adopt a jury system, which style jury system is more suitable for China if one is adopted, and further to discuss how to reform the current jury system (the people’s assessor system) in China.
The dissertation will first look through the decline of the jury system in the United Kingdom and the revival of the jury system in Russia, Spain and Japan, probe the causes for such change. Then the dissertation will look back the history of jury system in China. Afterwards, the article will discuss whether China should retain a jury system, and which style jury system—Anglo-American jury system or Continental mixed bench style jury system is more suitable for China. Finally, the article will explore how to reform the current people’s assessor system in China.
Ⅱ The Decline vs. The Reintroduction
A the Decline in the United Kingdom
England is the origin of the jury system; trial by jury can be traced more than several hundred years ago. After hundreds of years’ evolution, the jury system culminated in 19th century, when trial by jury dominated in both civil cases and criminal cases. However, during 20th century, the jury was increasingly criticized cynically ‘as a costly, sometimes incompetent anachronism that merely creates opportunities for exploitation by “professional” criminals at great public expense’ (Sally Lloyd Bostock & Cheryl Thomas, 1999; p8). The frequency of civil jury trials steadily declined in England and Wales from the middle of the 19th century, when judges were given the right to refuse trial by jury. The Supreme Court Act 1981 gives a qualified right to trial by jury in only four types of civil case: libel and slander, fraud, malicious prosecution, and false imprisonment. Even in these cases, the right can be denied where the court opines that the trial requires ‘prolonged examination of documents or accounts, or any scientific or local investigation which cannot be conveniently made with a jury.’ Today, according to Catherine Elliott and Frances Quinn (1998, p123), less than one percent of civil cases are tried by jury. Likewise, in criminal cases, the trial by jury declined steadily. Currently, only one or two percent of all trials are heard by a jury (Ibid, p123). Instead, the vast majority of criminal cases are tried in the magistrates’ courts by a bench of two or three magistrates. According to The Criminal Law Act 1977, criminal offences are categorized into three classes: ‘Summary’ offences are the least serious and are triable only in the magistrates’ courts. The most serious offences are classified as ‘indictable only’ and must be tried in the Crown Court, between these extremes are offences classified as ‘triable either way’, such cases can be tried either in the magistrates’ courts or the Crown Court. If the accused is tried in the Crown Court, and pleads not guilty he or she will be tried before a jury. Adjustments to the borderlines between the different categories of criminal offence progressively erode the right to jury trial over the past two decades. The Criminal Law Act of 1977 removed the defendant’s right to choose a jury trial in cases of criminal damage below ￡200. The Criminal Justice Act of 1988 further extended the powers of magistrates’ courts by expanding summary offences to include, for example, taking and driving away a car without the owner’s consent and common assault and battery. Pressure continues to further limit the right to jury trial, the Labor Government in 1998 announced that it was considering removing the defendant’s right to elect Crown Court trial for either-way offences and pressed ahead with legislation to implement the proposal. What is more, The Criminal Justice Act 2003, as Peter Thornton (2004) commented, does something entirely new. It denies a citizen of England and Wales the right to trial by jury in two classes of serious cases. Part 7 of the Act provides for trials on indictment without a jury ‘for certain fraud cases’ and ‘where danger of jury tampering’. Home Office statistics (1996) demonstrated the division of criminal business between the magistrates’ courts and the Crown Court: In 1995, about 1,940,000 defendants were proceeded against in the magistrates’ courts while the total for trial in the Crown Court was 86,000.
Similarly in the United States, the jury system has increasingly attracted fierce criticism. However, different from in the United Kingdom, the right to jury trial has been enshrined and entrenched into the written Constitution, it is comparatively difficult to amend the Constitution and restrict or abolish the trial by jury in the United States.
B The recent reintroduction of trial by jury in Russia (1993), Spain (1995) and Japan (2004)
While the trial by jury declines in the United Kingdom piece by piece, Russia, Spain and Japan reintroduced the jury system respectively in 1993,1995 and 2004. Stephen C. Thaman (1999,p234) observed, ‘the recent reintroduction of trial by jury in both Russia (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the long-term trend toward the elimination of the classic jury in favor of either courts composed exclusively of professional judges, or of “mixed courts” in which professional judges and lay assessors collegially decide all questions of fact, law, and sentence. Second, it raises the question whether the jury can act as a catalyst in the reform of Continental European criminal procedure, as it did during the nineteenth century in the wake of the French Revolution.’
The recent Russian reintroduction of jury system was inspired by the legal reforms of tsar Alexander Ⅱ which introduced trial by jury in Russia (Stephen C. Thaman, 1995; p64). In 1864, accompanied with other societal reform, the English style jury system was transplanted in Russia in order to modernize its judiciary system. Russian reformers then attempted to inject popular democracy into an autocratic regime ‘which had enslaved its people and turned the courts into corrupt instruments of executive power, dependent on local government patronage and instructions’ (Ibid) .the 1864 reforms were an island of liberalism in a sea of Tsarist autocracy (Ibid).
However, in 1917, the 1864 reforms were reversed; the people’s assessor system was introduced by the Bolsheviks to replace the jury. Theoretically possessing rights and powers equal to those of the judge, the people’s assessors were to decide questions of law and fact together with the professional judges. However, Russians commonly called them the ‘nodders’; whether due to their selection controlled by the Communist Party, or due to their intimidation by, or deference to the judge, they almost always agreed with the judge in their rulings (Dina Kaminskaya, 1978). In the late 1950s, Soviet Union legal scholars such as R.D. Rakhunov suggested expanding the panel of people’s assessors and entrusting it with the sole responsibility for deciding the guilt or innocence of the accused, a suggestion tantamount to the reintroduction of the classic jury (Stephen C. Thaman, 1995; p68). Anashkin, Chairman of the Judicial College on Criminal Affairs of the USSR Supreme Court, also recommended that the use of expanded panels of people’s assessors responsible for deciding guilt or innocence be introduced and evaluated in a limited number of courts (Ibid). The suggestions of reformers like Rakhunov and Anashkin in the 1950s and 1960s resurfaced during the course of Gorbachev’s introduction of the perestroika-era program of creating a ‘socialist rule-of-law state’ (Ibid, p69). Perhaps most importantly, the perestroika-era legal reformers recognized that a system of trial by jury could potentially facilitate the development of judicial independence. The Nineteenth All Union Conference of the Communist Party of the Soviet Union (CPSU) broached the idea of expanding the panel of people’s assessors in July 1988 (Ibid, p69). In May 1989, Gorbachev suggested the reintroduction of trial by jury to the Congress of People's Deputies of the USSR (Ibid, p70). In the same year, the Supreme Soviet enacted The Principles of the Law on Court Organization of the USSR and the Union Republics. The Principles provided that the defendant might choose a trial by jury (or expanded panel of people’s assessors) in cases involving crimes punishable by death or by deprivation of liberty in excess of ten years (Ibid, p69).
In the wake of the collapse of the Soviet Union, the Supreme Soviet of the RSFSR nearly unanimously approved The Concept of Judicial Reform (the ‘Concept’) introduced by President Boris Yeltsin on October 21, 1991(Ibid, p72). With its strong support for human rights and democratic principles, the Concept represented a break from the tentative reforms of the perestroika era. The Concept advocated the complete elimination of trials with people’s assessors and their replacement with trials by jury, single judges, and three-judge panels (Ibid, p74). The 1993 Constitution of the Russian Federation reaffirmed the right to trial by jury to the extent provided by law. Moreover, it provided that the death sentence would be imposed only if the defendant has a right to a jury trial (Ibid, p77). The provisions on jury trial are not self-executing; on July 16th, 1993, The Bill of Jury Law was passed the combined panels of the Supreme Soviet. (Ibid, p79).
Similar to Russia, Spain had ever implemented Anglo-American style jury system before suspended in 1930s. With the expansion of the Napoleon Empire, the jury system was spread to the conquered land. As Carman Gleadow (1999) noted, the possibility of a modern jury for Spain was mentioned for the first time in the Constitution of Bayonne, which Napoleon prescribed for Spain. Afterwards, although the Napoleon Empire collapsed, the jury system did not disappeared accordingly in Spain. Spanish Constitutions of 1812, 1837, and 1869 all stipulated some kind of trial by jury, in addition, the institution was provided for in The Code of Criminal Procedure of 1872 and in The Law on the Jury of 1888. The latter law was implemented between 1888 and 1923, when it was suspended by the Primo de Rivera dictatorship, and then again between 1931 and 1936 (Stephen. C.Thaman, 1999, p237). During Franco’s forty years dictatorship there was no jury in Spain (Carman Gleadow, 1999; p179). The death of Franco in 1970s provided the starting point for the implementation of a democratic process, which was swiftly put in place (Ibid, p195). Carman Gleadow (1999) comments, ‘ it was almost inevitable that the democratic programme after the Franco’s dictatorship would include public participation in the administration of justice’. The re-instatement of the jury into the Spanish legal system was stipulated in Article 125 of the post-Franco Spanish Constitution of 1978. This provision was conceived as the key to democratic reform of the criminal justice system following the Franco dictatorship (Stephen. C. Thaman, 1999; p237). The legislature noted that the suspension, abolition, or limitation of the jury trial in the period 1820-1939 always coincided with limitation of civil rights in periods of monarchic reaction or dictatorship (Ibid, p237). Under the auspices of a Socialist government, which soon after lost political power to the Right, The Fundamental Law on the Jury of 22nd May, 1995 was promulgated, and after 60 years’ absence from the Spanish legal system the institution of the jury was finally reinstated (Carman Gleadow, 1999; p179).
Like Russia and Spain, in modern history, Japan had ever adopted a jury system between 1923 and 1943. However, after decades of debate and study, Japan eventually in 2004 adopted a Continental style jury system, which is quite different from the jury systems adopted by Russia and Spain. Japan first adopted a jury system in1923. Although enacted in 1923, the law about jury system did not take effect until 1928, and it stayed in effect for fifteen years until it was suspended in 1943(Lester W. Kiss, 1999; p266). However, the transplant of jury system was not successful. The number of jury trials in Japan decreased drastically from 1928 to 1943. The annual number of cases tried by jury was greatest in 1929, when 143 cases were put to juries. The number dropped steadily, and in 1942, only two jury trials were held (Ibid, p267). Many Japanese scholars observe that it is not surprising that the jury system failed in Japan because the drafters of the law seemed to have built in various devices to prevent the smooth working of this institution (Ibid, p268). Since 1980s, just as in the United States, where certain seemingly outrageous jury verdicts have aroused criticism of the jury system, a similar phenomenon has occurred in Japan as for its judge-based system (Ibid, p262). Two of these controversial and highly publicized cases are the Shimada case and the Menda Case (Ibid, p262). In the Shimada case, Masao Akabori was arrested in May 1954 for the rape and murder, after a four-year trial, Akabori was convicted and sentenced to death in May 1958. Twenty-five years later, the Tokyo High Court overturned the Shizuoka District Court ruling rejecting a retrial request and remanded the case to the district court. The district court granted a new trial in May 1986. After nearly a two-year trial, the Shizuoka District Court acquitted Akabori in January, 1989(Daniel H. Foote, 1992;p50-63) .In the Menda case, Sakae Menda was charged with the hatchet murder. After a year-long trial in the Kumamoto District Court, Menda was found guilty of the murders and sentenced to death in March, 1950. The Fukuoka High Court and the Supreme Court upheld the verdict on direct appeal. In 1975, after numerous failed attempts at obtaining a retrial, Menda was successful when the Fukuoka High Court granted his request. The Kumamoto District Court acquitted Menda of both murders in July 1983, approximately thirty-three years after he was convicted (Ibid, p14-19). The causes of the debate on the reintroduction of the jury system, however, as Lester W. Kiss (1999) pointed out, go far deeper than a mere reaction to erroneous verdicts by judges. In particular, there are questions as to whether judges are effective finders of fact（Takeo Ishimatsu, 1989）. Proponents of the jury system are of the opinion that, in reality, criminal defendants are convicted before the trial even begins (Ibid).It is also argued that Prosecutors conduct the fact finding and draw legal conclusions, and judges simply rubber stamp their results（Richard Lempert, 1993;p39）. On June 12th, 2001, the Judiciary Reform Committee, which was established in July 1999, published The Opinion of the Judiciary Reform Committee, suggesting establishment of a new system by which the citizens can substantially participate in trials of some criminal cases. In may 21st, The Bill of the Participation by the People’s Assessors in the Trial of Criminal Proceedings was passed through the Congress. The Law states that the participation of the citizens in the trial of criminal cases with judges is to add the understanding of administration of justice and to enhance the trust to the judiciary of the common public. As Tiankou Shouyi (2004) pointed out, the establishment of the people’s assessor system enables the common public to participate in the administration of state affairs through joining in the criminal trial, and therefore is quite useful for the citizens to foster the consciousness of democracy.
At a glance, the completely opposite trend of evolution of jury system is quite confusing: what on earth is the destiny of the jury system, which has existed on the planet for hundreds of years? Whether it will continue to exist and flourish, or it will eventually disappear? Definitely, it is not only a theoretic issue, it is quite important for the evolution of the legal system of every country, especially for China in a transitional period.
However, if looking into the modern history of the countries, which recently reintroduced a jury system, it is easy to find some similarities among them. Russia, before the October Revolution, was a comparatively backward feudal country. Furthermore, from 1917 to 1991, Russia went through the rule of a totalitarian regime. After the collapse of the Soviet Union, Russia naturally prioritizes democratization and the establishment of rule of law. Likewise, from 1939 to 1975, Spain was under the fascist dictatorship of Franco. After the death of the dictator Franco, democratization logically becomes the priority of Spanish government. Russia and Spain, much like Continental Europe in the eighteenth and nineteenth centuries, is in the process of establishing democracy and an independent judicial system and both countries perceive the jury system as the effective tool to achieve the enterprises. In Japan, the reintroduction of the jury system similarly targets to raise the consciousness of democracy of the people.
On the other side, the United Kingdom, and the United States, where the jury declines steadily or confronts fierce attacks, have undergone their anti-feudal, bourgeois revolutions and have successfully established sound democratic system and an independent and respectable judiciary. Noticeably, the achievements of these countries owe much to the jury system. It is the truth that everything has two aspects, the jury system could promote democracy and protect the liberty of the citizens, however, in the meantime, it is also expensive, time-consuming and sometime over lenient and so forth. In the United Kingdom and the United States, when the democracy and rule of law have firmly been established, the merits of the jury system have been eclipsed by the disadvantages of itself. When people do not desperately need the protection of this institution, they will be more sensitive to the inconvenience brought by such a mechanism. Consequently, the jury system cannot avoid the fate of decline or even abolition. Probably, the substantial difference of these two groups of countries leads to the different trends of the evolution of jury system.
Undoubtedly, the reintroductions of jury system in Russia, Spain and Japan possess much valuable implication for China’s judicial reform. Russia, in modern history, shares much more similarities with China than any other country. The shortcomings of the legal system, which Russia is trying to remove, probably exist in China’s legal system too. Accordingly, every reform implemented in Russia is definitely well worth attention of Chinese legal scholars and judicial officials. Without doubt, the implication of the reintroduction of jury system in Russia is pretty meaningful for the debate about the reform of jury system in China.
Japan is also a good teacher for China. In ancient history, China exerted enormous influence on Japan. However, in modern history, Japan in turn affected China a lot. In particular, in the field of legal system, China transplanted much modern institution directly from Japan. As a result, China and Japan share many similarities in legal tradition. Accordingly, the debates in Japan and the jury system eventually adopted by Japan are an invaluable reference for China’s jury system reform.
Ⅲ Is Jury System Totally an Imported Institution for China?
Undoubtedly, it is meaningful for the topic of this dissertation to study whether China’s traditional society could conceive and establish any kind of jury system.
In the ancient history of China, from Qin Dynasty through Han dynasty to the Qing dynasty, the emperors possessed the absolute right and power; the will of the emperor was the supreme law and the order of the emperor was superior to the written statutes. Legally speaking, emperor could execute any subject and deprive the property of any national at his will. An ancient poem says, ‘All the people are the subjects of the emperor, all the land are the property of his majesty’. In the dimension of social ideology, almost in the thousands year’s history of all Chinese feudal dynasties, the Confucius philosophy dominated the thinking of the people. The ideology preached the people to respect the senior and the superior and obey the order of the rulers. After thousands years of conditioning, Chinese became quite tame to accept the autocratic rule. Among all civilizations in the world, the Chinese feudal dynasties may be the most totalitarian despotism. Obviously, the ancient Chinese society is quite different from the society of England, where the jury system has been evolved. The people in the ancient China dared not to conceive that their equals should be empowered to decide their lawsuits, not to mention to establish the jury system, which reflects the democratic ideology. In fact, in Chinese feudal society, the thought of democracy by itself could constitute a serious felony, because it challenges and threatens the absolute power of the emperor.
According to Qi Wang (2001), it was until late Qing dynasty that the jury system was first introduced to China. In 1906, Qing Government drafted The Criminal and Civil Procedural Law, which adopted the jury system and some other legal institutions from western countries. Ironically, due to the strong objection of ministries and local governments, The Criminal and Civil Procedural Law has never been implemented, and soon the Qing dynasty was overthrown in 1911.
During the period between the collapse of Qing dynasty and the establishment of the People’s Republic of China (1911-1949), the Republic of China adopted some kind of jury system. However, due of a variety of reasons, including lasting civil war and the 8 years long anti-Japanese war, the implementation of the institution, in general, was not successful (Qi Wang, 2001).
In conclusion, the traditional Chinese society was not a possible environment for the conception of some kind of jury system, and therefore, trial by jury is complete an imported institution for China.
Ⅳ Should China Adopt some Kind of Jury System?
From 1990s, the people’s assessor system has been criticized increasingly. Some people even suggest that the institution should be abolished.(Dongshun Hou,2003; Yuan Yao,2001). In addition, some people argue that the people’s assessor system should be transformed into a sheer supervisory body (Haorong Zeng, 2001). Such a suggestion virtually equals to abolition of the jury system; in essence, the people participating the trial who only supervise the judges and do not take part in the adjudication of the cases are not the jurors, such a system is quite different from the jury system. Of course, the criticism of the people’s assessor system is not groundless. Before the promulgation of The Act of Improving the People’s Assessor System, although trial by jury was allowed by law, the jury system had virtually failed. Some courts had completely abandoned the trial by jury; some other courts retaining trial by jury only regard the jurors as the cheap alternative to the judges to solve the problem of shortage of judges. What is more, just like the people’s assessors of former Soviet Union, people’s assessors almost always act as ‘nodder’ or ‘rubber stamp’. The trial by people’s assessor had been completely degenerated into only a form.
Nonetheless, The jury system is quite useful for the modernization of China,
China should retain and strengthen some kind of jury system. As mentioned above, for Chinese, the jury system is completely an importation from western countries’ legal system. Therefore, when determining whether China should transplant the system or not, it is necessary to understand the function of such a system and the purpose of such transplantation.
First of all, Jury system is the catalyst of democratization and the establishment of rule of law. The jury system is not only a judiciary institution, but also a political institution. Alexis de Tocqueville, in 1835, in his classic study Democracy in America, commented, ‘the jury is pre-eminently a political institution; it must be regarded as one form of the sovereignty of the people... the jury was a means of making the majority prevail.’ Additionally, Tocqueville called the jury a ‘free school, in which each juror learns his rights,’ and he noted that ‘juries teach men equity in practice.’ More than one hundred years later, Lord Justice Delving (1956) in his often-quoted statement similarly argued, ‘ each jury is a little parliament; the jury sense is the parliament sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be make parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.’
In the Preamble, The Constitution of the People’s Republic of China of 1982 stipulates that one of the basic tasks of the nation in the coming years is ‘to develop socialist democracy and improve the socialist legal system’; while the jury system is just a quintessential institution of democracy and, it also symbolizes the state’s commitment to democracy. The jurors sit in the trial, hear the evidence, and determine the fact or even apply the law to the cases. The jury system enables the common citizens directly participate in adjudicating the cases, which is one of the important governmental businesses. In the past three decades, it is commonly recognized that Chinese economic reform has achieved significant success, however, the reform of the political system remain stagnating. Probably; the extension of the jury system can reasonably act as the first step of the political reform. Compared to other political reform, the implementation of jury system is a comparatively easy way to promote the democracy in China; the adoption of jury system will exert small shake and risk to Chinese society. On the other hand, in a sense, the jury system could be regarded as the touchstone of whether the state is willing to deepen the political reform and promote democracy.
The jury system not only facilitates the citizens to directly manage the national business, more importantly, the jury system can foster the consciousness of the democracy and rule of law, which is indispensable for a modern democratic society. The significance of consciousness of the democracy and the rule of law cannot be overestimated. Just as mentioned above, Chinese people in history had no consciousness of democracy and rule of law. The jury system just has the function to foster the consciousness. Through participation in trial, the citizens exercise the judicial power of state to decide legal disputes, consequently, they will naturally realize that they are the masters of the state and they are entitled to enjoy the democratic rights. Such a common consciousness of democracy may eventually lead to the establishment of a democratic society. In fact, one of the aims of the introduction of jury system in Japan is just to foster democratic ideology of the ordinary Japanese people. Additionally, participation in trials is itself the process of education for the jurors; the jurors can learn the knowledge of law, and shape the mind to intentionally abide by the law. What is more, the legal knowledge and the mind to abide by the law can be spread by the jurors to the communities where the jurors come from.
Second, the establishment and development of jury system in the United Kingdom, The United States, France etc., was just resulted from the struggles of the citizens for liberty and democracy. In England, King John was forced by the uprising barons to sign the Magna Carta (The Great Charter of Liberties) in 1215, which provided the ‘trial by their peers’. Article 39 of Magna Carta stipulated ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers or by the law of the land.’ Article 39 of Magna Carta is the protection of the nobles from the autocratic government, and the signing by King John was the result of the struggle of the barons. Although then the right to trial by the peers was enjoyed only by the barons (the nobles), not by all, nonetheless, trial by their equals is just the essence of the jury system. Because of Magna Carta, the king could no longer arbitrarily deprive the property or the liberty of the nobles through the judicial officials controlled by himself.
In the United States, before Revolution, the jury system had been used as an effective instrument by the residents in the 13 North American colonies to protect their liberty; consequently, the institution itself became the focus of the conflict between the colonies and the mother country. The most noted in the colonial era was Zenger case (Albert W. Alschuler & Andrew G. Deiss, 1994; p871). Zenger, a New York printer, who had been charged of seditious libel, finally was acquitted by a jury. Zenger's trial was not an exception. in fact, during the colonial period, juries and grand juries almost nullified the law of seditious libel in the colonies. In the seventeenth and eighteenth centuries hundreds of defendants were convicted of this crime in the mother country (Fredrick Seaton Siebert, 1952). In contrast, throughout the colonial period, there seem to have been no more than a half-dozen prosecutions and only two convictions in America. (Leonard W. Levy, 1985; Harold L. Nelson, 1959). Grand juries were reluctant to indict and juries reluctant to convict.
The English government responded to their difficulties with American juries partly by extending non-jury trial. The Townshend Acts of 1767 empowered non-jury admiralty courts to enforce English revenue measures (Carl Ubbelohde, 1960). In addition, to control the composition of the jury was another strategy employed by English government to deal with the troublesome juries of American colonies (Albert W. Valerie P. Han& Neil Vidmar, 1986; p35-36). In1760, the colonial legislature in Massachusetts passed The Massachusetts Jury Selection Law requiring that the venire, or panel, from which the sheriff drew his list, should be chosen by a town meeting. Following complaints by Tory sympathizers that ‘ the examination of jurors is now more in the hands of the people than ever before’, the English Parliament was convinced that the selection of jurors should be regulated by the Crown. Accordingly, in 1774, a parliamentary law was passed that cancelled The Massachusetts Jury Selection Law, removing jury list selection from town meeting and placing it in the hands of the court. After 1774, consequently, the mother country had a more or less free hand to compose the jury so as to secure conviction.
In 1776, the Declaration of Independence listed as a grievance against England ‘depriving us... of the benefits of trial by jury.’ Even before The Declaration of Independence, The First Continental Congress’s Declaration of Rights of 1774 had proclaimed the right to jury trial. Twelve states had enacted written constitutions prior to the Constitutional Convention, and the only right that these twelve constitutions declared unanimously was the right of a criminal defendant to jury trial. (Leonard W. Levy, 1987). At the Constitutional Convention, the Federalists and Anti-Federalists consistently agreed upon safeguarding the jury. Alexander Hamilton (1788) in Federalist 83,observed, ‘The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.’
Naturally, the Constitution provided for a jury system, article Ⅲ section 2 of the Constitution states, ‘ the trial of all crimes, except in cases of impeachment, shall by jury’. Additionally, the 6th and 7th Amendment of the Constitution reiterated the right to trial by jury. After two hundreds of years of implementation, the trial by jury has been embedded in the minds of American people. Today, the overwhelming majority of trials by jury (both civil cases and criminal cases) are taking place in the United States. Undoubtedly ,The democracy and rule of law in the United States, which is the envy throughout the world should be attributed much to the jury system.
In France, before the Revolution, there was no jury system. France, which had suffered the inquisitorial judicial system, looked to England for an institution, which could check state arbitrariness when deciding on alleged social infringements (Carman Gleadow, 1999, p14). After the Revolution, the revolutionaries, with the resentment and fear of oppressive and secretive judicial system that routinely employed torture, enthusiastically transplanted English jury system to France. Disregarding the French traditional criminal system, both a grand jury and a petty jury were introduced (Roderick Munday, 1993, p206). Following the military success of the Napoleon conquer war, the jury system was spread to some other European continental countries, including Germany, Italy, Spain and so on. Even after the failure of Napoleon Empire and the withdrawal of French army, the most European countries remained the jury system introduced by Napoleon (Carman Gleadow, 1999, p21).
Likewise, even at the turn of 20th and 21st century, the reformers in Russia, Spain and Japan still regard the jury system as an effective tool to achieve democratization and the establishment of rule of law, and enthusiastically reintroduced this institution into their own judiciary system despite the ongoing decline in the country of its origin.
Thirdly, the jury system can protect the citizens from the arbitrariness of the state.
Even in democratic countries, the states are prone to encroach the rights of the citizens, not to mention totalitarian and autocratic governments. The jury system acts as the bastion of the citizens’ rights. John H. Langbein pointed out (1981), ‘of the many purposes attributed to the jury, one stands out as paramount. The power to condemn citizens to criminal sanctions is potentially so dangerous that it ought not to be left entirely to the hirelings of the state.’ Similarly, Justice White wrote in Duncan v. Louisiana (391 U.S. at 156), ‘Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary, but insisted upon further protection against arbitrary action…. (Jury trial gives the accused) an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.’
Last but not the least, the jury system can facilitate to solve some current practical problems in the administration of justice in China. Like former Soviet Union and Japan, the acquittal rate in China is extremely low, and judges are known for their prosecutorial bias. Legally, the suspects and defendants are provided a wide set of legal protection, however, in reality there exists interrogation by torture, illegal detention and so on in criminal proceedings. The people’s courts cannot act as a corrective of the pretrial injustice. The legal protection of the defendants is diminished by the practice of judges and prosecutors. Theoretically speaking, the independent jurors would be more inclined than judges would be to listen to the evidence and deliver a fair verdict, and the trial by jurors could effectively prevent the pretrial illegitimate investigation. In addition, the judges in China enjoy much less independence than their colleagues in the western countries due to a variety of reasons, the interventions to the trial are not rare at all. On the one hand, the jurors participating in the trial can disregard undue interference and deliver independent and fairer verdicts; on the other hand, the trial by jury could also protect the judges from vast pressure from some higher officials or unnecessary and unfair criticism from the public. Additionally, technically speaking, the trial by jury would bring common sense, community values and some expertise to the trial, which can greatly supplement the knowledge of the professional judges.
To sum up, China should adopt some kind of jury system.
Ⅴ Is Anglo-American Jury System Suitable for China?
Recently, among the debates about the jury system, it is also suggested that China adopt the Anglo-American style jury system. Jianming Xiong, A member of local congress in Guangdong Province, during the session of local congress put forwards a recommendation that China should introduce the Anglo-American style jury system and such a jury system could first be experimented in Shenzheng City, the Special Administration Zone. (Ping Qin, 2004). Ruihua Chen, a professor with Beijing University, is also of the opinion that China should adopt the common law style jury system (Ibid). Professor Chen argues that the current China’s legal system were by and large copied from the former Soviet Union, and Russia reintroduced the jury system in 1993 and then extended it to the whole country, therefore, China could adopt a common law style jury system. Additionally, the Anglo-American style jury could better improve the current legal system and achieve judicial democracy.
Although the Anglo-American style jury system appears to be a better instrument to achieve democratization and the establishment of rule of law, taking the situation in China into account, the mixed bench style jury system is preferable to the Anglo-American one for China.
First of all, the adoption of the common law jury system is high risky. Unlike Russia, China in ancient history had never implemented the trial by the jury, Chinese people have not any conception about the Anglo-American style jury; however, technically speaking, the trial of jury in England/America is very complex, regulated by a wide set of complicated rules. In addition, as mentioned above, the Chinese people lack of the consciousness of the democracy and rule of law, the dominant Confucius philosophy teaches the people to respect the senior and the superior, the trial by equals can not be accepted easily; on the other hand, the common public are not all willing to serve as a juror either. Furthermore, The reintroduction of the jury system in Russia is definitely a radical reform, just as the reform in other political and economical areas in Russia. However, in the economic system reform in Russia, the sharp transfer to the American style market economy brought forward severe depression of Russian economy and entailed lots of political and social unease. In contrast, China adopts the touch-stone policy to implement the market economy system, and Chinese economy achieved sustainable and stable growth, having successfully avoided any big shock to the economy and the society. Probably the comparison in the economic reform area between China and Russia is a good lesson for the reform in the judiciary system. What is more, China now has entered into a critical period today. After three decades reform, although Chinese economy has achieved significant success, there have emerged lots of social problems, especially the gap between the rich and poor; the political reform has not made any substantial progress. Obviously, the stability is perfectly essential for the development of China. In this context, China cannot afford any society shock. However, the adoption of the common law style jury system is probably at the risks of the failure of the operation of the judiciary system. The risk is quite beyond the capacity of Chinese society.
Secondly, the experiments of the common law style jury system had failed finally in Germany, France and some other European continental countries. Germany and France, after more than one hundred years of implementation of English jury system, respectively abandoned it in 1920s and 1930s. Some people argue that the abolition of common law style jury system should be attributed to the ideology of fascist. However, before the nazi party came into the power, there had already strong suggestion to abolish the common law style jury system in both Germany and France. What is more, even after the failure of the fascist, either Germany or France has not resumed the jury system, instead retains the mixed bench style jury system. Generally speaking, Chinese legal tradition and legal culture is much closer to the civil law system than to common law system (such as the written law tradition, and the inquisitorial trial culture and so on). The failure of adoption of common law style jury system in France and Germany contains invaluable implication to Chinese judicial reform.
Furthermore, Chinese people are comparatively familiar with the mixed bench style jury system. Since the founding of the People’s Republic of China, China has adopt the people’s assessor system, though the implementation of the people’s assessor system is too far from satisfactory, the system has inevitably exerted a certain degree of influence on Chinese people. Therefore, the continental mixed bench style jury system will be implemented more smoothly.
Additionally, the practice of Japan is well worth studying, After years of deliberation, the Japanese government eventually adopted the Continental style jury system in 2004, Japan and China are both Eastern Asian countries, sharing the similar culture, the philosophy, and the similar legal tradition. The practice in Japan is definitely enlightening for Chinese judicial reform.
In conclusion, the mixed bench is more suitable for Chinese judiciary system. However, it does not mean that the current people’s assessor system need not be reformed at all.
Ⅵ How to Reform the Current people’s Assessor System?
A Evolution of the People’s Assessor System in the People’s Republic of China (October, 1949-may 1st 2005)
From 1949 to2005, the development of jury system in China, as Minyuan Wan (1999) noted, could be divided into two stages. The first one is primary establishment period and the other is restoring and soon after diminishing period. According to Minyuan Wan (1999), the establishment period lasted from 1954 to 1966, when the Cultural Revolution was launched. The Constitution of the People’s Republic of China of 1954 stipulated, ‘The people’s courts should implement the people’s assessor system when trying cases’. In the same year, The People’s Court Institution Act of 1954 was promulgated, which stated, ‘ the people’s courts should implement the people’s assessor system when trying the first instance cases, except simple civil cases, minor criminal cases and other cases stipulated otherwise by the law’. In this period, trial by jury was a constitutional principle. However, due to the lack of the corresponding civil and criminal procedural law, as Minyuan Wang (1999) observed, the principle of trial by jury remained too abstract and general. Furthermore, it is worth noticing that, as Mingyuan Wang (1999) pointed out, the jury had not a final say about the fact or the application of law due to the prevalent practices that the decision must be approved by the party committee in this period. During the Cultural Revolution (1966-1976), the judiciary system, including the police, the people’s courts and the prosecution services were completely abolished, not to mention the fate of the people’s assessor system.
During the second phase (1978-2005), the people’s assessor system had been restored and then soon was diminished gradually. In the wake of the end of Cultural Revolution, the National Congress enacted The People’s Court Institution Act of 1979 and The Criminal Procedural Code of 1979. The article 9 of The People’s Court Institution Act reaffirmed that the people’s assessor system should be implemented in first instance trial. In The Criminal Procedural Code, article 9 reiterated the principle of trial by people’s assessor. Additionally, The Criminal Procedural Code stipulated specifically the composition of mixed court in different trials. What is more, section 3, article 105 of The Criminal Procedural Code stated that the people’s assessors had the same rights and powers with the professional judges when fulfilling their duties in the people’s court. However, the jury system was soon be diminished. The Constitution of 1982 does not stipulate trial by people’s assessor as a fundamental principle. Additionally, the National Congress enacted The Civil Procedural Code in 1982, in which trial by people’s assessor was not regarded as a primary principle either. What is more, in 1983, The People’s Court Institution Law was amended; the article 9 of The People’s Court Institution Act of 1979 was deleted and the trial by people’s assessor lost its status of fundamental principle.
Nonetheless, though trial by people’s assessor lost its status of fundamental principle and was no longer mandatory, trial by people’s assessor is still allowed by relevant laws. In reality, trial by people’s assessor exists as usual, especially in criminal proceedings.
However, the implementation of the people’s assessor system was far from satisfactory in this period. Many a people’s court completely abandoned the trial by the people’s assessor, or some courts carrying out trial by the people’s assessor just regard the people’s assessors as a cheap and convenient alternative to solve the shortage of the professional judges when facing flooding lawsuits. What is more, the people’s assessors, who participate in the trials, like their counterpart in the former Soviet Union, were commonly called ‘nodder’, ‘rubber stamp’. Since 1980s, the people’s assessor system has increasingly attracted fierce criticism; many legal scholars and judicial officials even strongly suggest abolition of the institution in name but not in reality.
In 2000, the Supreme Court presented the National Congress The Bill of Improving the People’s Assessor System. After years of discussion, the Bill was finally passed on the National Congress and became a law in 2004. According to article 20, the Act would be implemented as from 1st may, 2005.
B The Current People’s Assessor System in China
The Act of Improving the People’s Assessor System is the first special act addressing the issue of people’s assessor system in the history the People’s Republic of China, which shapes the current people’s assessor system in China.
According to the legislation explanation reported to the National Congress by deputy president Deyong Sheen, (2004) on behalf of the Supreme Court, the legislation of The Act of Improving the People’s Assessor System has several purposes. First, the legislation is to secure the constitutional rights of citizens to participate in the administration of state business. Secondly, the legislation of people’s assessor system aims at promoting the judiciary democracy and enhancing the judicial impartiality. Thirdly, the legislation could add the judicial transparency and strengthen the judicial supervision by the public. Fourthly, the legislation is essential to the resolving of some practical problem in the implementation of existing jury system. Undoubtedly, the purpose of the legislation is right, which illustrates the drafter of the Act pretty well understand the primary function of jury system.
The act is short and general, containing only 20 articles and 1700 Chinese characters. Nonetheless, the Act almost stipulates all essential aspects of a jury system. As regards the duty and right of the people’s assessor, Article 1 states, ‘the jurors take part in the trial in the people’s court, and the jurors have the same rights as the judges except that they cannot preside the collegial panel.’ According to the stipulation, the right and duty of jurors is the same as jurors in the mixed bench in Germany and France.
As for the selection of the people’s assessors, Article 7,8 stipulate that the president of the county court should submit the list of the candidate assessors to the standing committee of the local congress for approval. The selection of the assessors is quite different to the way in the western countries, and the state firmly controls the selection of the assessors. In this respect, the Act has no alteration compared to the previous people’s assessor system, just confirming the common practice of selection of the people’s assessor in many courts.
Article 2 of the law stipulated the scope of the cases qualified for the trial by the people’s assessor. There are mainly two categories of cases, one class are first instance criminal, civil and administrative case, which exert significant influences; the other class are those cases where the criminal defendant, the claimant or the defendant in civil case or the claimant in administrative case asks the trial by jury. However, there are some exceptions; among those cases mentioned above, the case applied with simplified procedure and the case stipulated otherwise by the law should not be tried by people’s assessor. By comparison, the Act enlarged the scope of the cases qualified for the trial by people’s assessor by permitting the criminal defendant, the claimant or the defendant in civil case and the claimant in administrative case to ask the trial by people’s assessor. In fact, this enlargement is one of the quite limited innovations of this people’s assessor system legislation.
The Act stipulates the qualification of the people’s assessor. Section 2, Article 4 says, ‘the people’s assessor, in general, should has a college degree or higher’. In less-developed area, the Act allows that people without a college degree can be appointed as assessor. In contrast with the anteceded people’s assessor system, the Act heightened the qualification of the assessor, accordingly, the assessor candidate pool will be correspondingly contracted.
As for the administration and training of assessors, article 15,17 of The Act states that county court and the department of justice of local government in the same level are jointly in charge of managing and training assessors. In this part, the Act does something new. Before, the department of justice of local government has nothing to do with the business about people’s assessor, under the new system, the department of justice of local government has obtained new legal task: managing and training people’s assessor together with people’s court.
As respects the expenditure of assessors, article 18 states that, ‘… when the assessor who has a job participates in trial, the unit where he works should not reduce directly or indirectly the wages, rewards or other welfares; when the assessor without stable income takes part in trial, the court should compensate them according to the average local income standard by working days’. As far as the expenditure is concerned, the Act has not made any change, just confirming the way in old people’s assessor system.
In general, the Act retains most rules of the previous system without any substantial changes. Frankly speaking, it just consolidated separate rules in a variety of laws into a special act dealing with people’s assessor system.
C To Further Reform the People’s Assessor System
As discussed above, The Act of Improving the People’s Assessor System almost repeats the previous people’s assessor system. Obviously, the Act cannot achieve the purpose alleged by the drafter of the Bill. In practice, many a problem has emerged From May 1st, 2005, when the Act was officially implemented, to the time of writing. It was reported that In Shenzheng City, from the implementation of the law to august 2005, 95 new recruited assessors altogether took part in 5244 cases. On average, each assessors participates 13.8 cases per month (Anon, 2005). Junjie He, an assessor with Luofu Court, Shenzheng City, is proud of that in one year he has taken part in 242 cases. He said the participation into the trial had become important part of his life (Xin Su, 2006). A people’s assessor, took part in trials of 242 cases in one year, such a practice is pretty absurd. It is very difficult to imagine how he, a layman, adjudicated so many serious legal disputes in one year. Additionally, the relationship between the assessor and the court is too close. Junjie He also emotionally praised the Court, ‘ the Court pays much attention to the work of assessors, and allocates the assessors the offices to read the dossiers. Correspondingly, the assessors are active, and voluntarily bind up the bundles of lawsuits…’ Given so close relationship, it is beyond imagination that the assessors can effectively supervise the professional judges and adjudicate the cases independently. In addition, according to Bing He& Guoxiang Zhang (2006), in Yangzhou City , currently there are 203 assessors. Except for 30 assessors without a college degree; the other 173 all have a college degree or higher degree. Among the 203 assessors, 92 (44.6%) come from government departments, 46 (22.3%) come from the entities financed by the state, and only 24 (11.65%) come from the enterprises. First of all, there are nearly 5 million residents living in Yangzhou City, and the number of people’s assessor is only 203, the ratio of people’s assessors to the population is far too small. As a result, the influence of the jury system is definitely limited. Additionally, most jurors have a college degree; they cannot represent the communities. Furthermore, 44.6% assessors come from government departments, 22.3% assessors come from the entities financed by the state, it is naturally questionable whether these assessor can remain independent from the local government.
Deyong Shen (2004) noted in The Explanation of The Bill of Improving the People’s Assessor System, ‘With the development of the economy and society, and the advance of democracy and legal system, the people’s assessor system should be further improved’. Indeed, the current people’s assessor system requires further reform; China needs a sound jury system to achieve the goal of democratization and establishment of rule of law. A people’s assessor system in form not in reality is not only useless for modernization of China, but also harmful to China’s judicial system.
First of all, the number of the people’s assessors should be increased significantly.
The qualification should be reduced. China is a developing country, the proportion of the people holding a college degree or higher in all population is quite small, so high criterion can only act as a barrier to prevent the majority from participating in the administration of justice. Such a system, in itself, is not democratic. Of course, there must be some minimum requirement. The assessor must be literate and can understand the conversation during the trial .In this aspect, China can follow the prevalent practices of western countries, which adopt a jury system. Furthermore, the assessor should be restricted from taking part in too many trials to enable more people participate in the administration of justice.
In addition, the independence of assessors should be guaranteed. The importance of the independence of the assessors cannot be overestimated. Without independence, the people’s assessor system is merely an ornament for democracy. The independence of the assessor has two dimensions. The first one is that people’s assessor should not be controlled by the government; the other is the assessor should keep independent from the court and the judge. Accordingly, first, the current selective way should be completely abolished and replaced by selection at random. Following the common practice in other countries, the people’s assessor can be selected from the voter list at random. In the meantime, the importance of the independence from the judge and court cannot be overlooked. One of the main reasons why the people’s assessor is usually called ‘nodder’, ‘rubber stamp’, is just that the assessor is too dependent to the judge. However, under the current people’s assessor system, the court is not only empowered to select the assessor, but it has the right to administrate the assessor. Under such a system, it is definitely impossible for the assessor to remain independent. Therefore, the power to select and manage the people’s assessor should be deprived from the court. Furthermore, some discipline should be established to keep the assessor and the judge from being too close to each other.
Last but not least, the state should finance the operation of the jury system itself. Under present system, the working unit, which the juror works with, should bear the expenditure of the operation of jury system. However, it is the government responsibilities to maintain the jury system, not the private enterprise or other unit. Inevitably, the working unit shouldering such cost will naturally be reluctant to support the work of the juror, and consequently the work of the jurors will be affected negatively. The operation needs the support of the whole society, in particular in China where the consciousness of jury system has not been rooted in the society. Hence, the burden of finance should be shifted to the state.
In spite of the ongoing decline of the jury system in England, the origin of this institution, Russia, Spain and Japan respectively reintroduced the jury system at the turn of 20th and 21st century. All the three countries all perceive the jury system as an effective instrument to achieve the democratization and the establishment of rule of law. As for as China is concerned, the jury system is a sheer imported institution. In ancient history, it is definitely impossible for Chinese to conceive and establish some kind of jury system. Although in the past half century, the implementation of the people’s assessor system virtually failed, jury system is still valuable and essential to the democratization and the establishment of rule of law, China should adopt some kind of jury system. Taking the China’s legal tradition and the current situation into account, the Continental style jury system is more suitable for China. In 2004, China has reformed the people’s assessor system. However, this reform is far from enough, the current people’s assessor system still contains many substantial defects, and it needs further reconstruction. First of all, the number of the assessors should be increased drastically; additionally, the independence of the assessor should be guaranteed; furthermore, the expenditure of the operation of the people’s assessor system should be shouldered by the state.
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